In Illinois, in the absence of an express agreement of duration of employment, the employment relationship is presumed to be one of employment-at-will. It is terminable by either party for a good reason, a bad reason, or for no reason at all. However, the relationship may be contractually modified in writing or orally.
Exceptions to the employment-at-will doctrine
- A union contract may override the employment-at-will doctrine;
- A personal employment contract may override the at-will-doctrine;
- Statements in an employee handbook may modify employment status, on the theory that it is, in essence, a "contract" between the employer and employee. Duldulao v. St. Mary of Nazareth, 115 Ill.2d 482,505 N.E. 2d 314, 106 Ill. Dec. 8 (1987); and
- Handbook language must contain a clear enough promise that an employee might reasonably believe an offer was made. Language such as "must" or "never" or "shall" preceding a promise has been deemed clear promise;
- Statements must have been disseminated to the employee in a manner that the employee is aware of the contents and reasonably believes it to be an offer;
- The employee has started or continued to work for employer after learning of the statement; and
- An employee handbook may also disclaim that the provisions contained are modifications of the at-will employment agreement. The disclaimer must be conspicuous and unambiguous. A disclaimer does not automatically preclude recovery. See case law.
- Statements made in other writings such as letters may modify the agreement, again, on the theory that the writing amounted to a contract.
Two categories of oral modification are recognized:
- Promises of "permanent" employment - must be clear and definite and supported by sufficient consideration. These are rarely established; and
- Promises of a specific duration of employment or benefit - oral promises of a particular benefit such as a raise at a certain time or health insurance are rarely held to modify the employment agreement.
It is open to question whether an employer may unilaterally modify the agreement under which an employee was hired without providing the employee with some consideration for the adverse modification.
Used when the elements of a contract can not be established.
- An unambiguous promise to plaintiff;
- Plaintiff’s actual reliance on the promise;
- Plaintiff’s reliance was expected and foreseeable to defendant; and
- Plaintiff relied on the promise to her detriment.
Promissory Estoppel is often used to recover unpaid commissions.
- Remember to consider the 5-year statute of limitations for oral contract and 10-year statute of limitations for written contracts;
- Public officials are not able to modify employment contracts if prohibited by code or public policy; and
- Public employees are subject to considerations unique to the public sector.
This tort claim may be made where an employee has been terminated for refusing to commit an unlawful act or for performing some act which is protected by statute or by public policy. The Whistleblower Act gives a statutory cause of action for persons who suffer retaliation for either reporting what they believe is a violation of law or for refusing to participate in an activity they believe would be a violation of law. The tort claim of Retaliatory Discharge is similar to a cause of action under the Whistleblower Act, but covers a wider swath of conduct.
- Employee is in fact discharged. This includes any involuntary termination;
- Discharge is motivated in whole or in part by the employee’s protected activities; and
- Employee’s conduct is protected by a clearly mandated public policy.
Protected "public policy" is typically found in the areas of crime prevention and public safety. In some circumstances policies associated with social and economic regulation have been recognized. The greatest protection is found in the "whistle blowing" area. A public policy is most "clearly mandated" if the activity is protected by statute or arises from a statute. The most clear pronouncement of public policy is legislation.
Sources of "public policy" have been found in:
- In Illinois statutory law such as the Workers’ Compensation Act;
- In federal law if an Illinois public policy is implicated;
- When plaintiff has reported possible criminal activity to an outside agency, although districts disagree on whether internal reporting can support a cause of action;
- Health and safety issues;
- Accounting practices which violate federal securities laws;
- Reports concerning ethical violations, such as an ARDC report;
- Civic duties such as jury duty;
- Employees’ statutory rights such as filing health insurance claims; and
- Individual rights such as the right to sue an employer for defamation.
Note: If claim is based on the employee activity of "whistle-blowing", the whistle must have been blown "in good faith."
The law is moving toward recognition of causes of action for retaliatory transfer, demotion and other retaliatory actions short of actual discharge.
Certain statutes preempt a cause of action for retaliatory discharge. When a cause of action is preempt the result is that federal or state law, such as those listed below, will be the one that must be given priority and conflicting laws do not have effect on the cause of action. They are:
- ERISA, where plaintiff has been fired for availing self of disability benefits;
- Labor Management Relations Act, where interpretation of terms of a labor agreement is involved, the LRMA must be used. However, a separate tort may be recognized where claim is based on state law rather than the labor agreement and in this instance the employee is not required to exhaust contractual remedies before filing;
- National Labor Relations Act, to be used where employee has been fired for union activity or for organization activities;
- Railway Labor Act, which is the exclusive remedy for breaches of collective bargaining contracts in the railroad or airline industries;
- OSHA, the Occupational Safety and Health Act, is to be used where the claim is based on OSHA violations, although state public issues may be involved and a separate tort may be considered;
- Illinois Human Rights Act (IHRA) is preemptive if it can be used. If the Act does not cover the employer for example, where employer has fewer than 15 employees, a separate tort action for retaliatory discharge may be filed; and
- Statute of Limitations prohibits claims after 5 years.
Investigations and testing
Employment Record Disclosure Act 745 ILCS 46/10
An employer has no liability for providing truthful information or information that the employer in good faith believes to be truthful upon inquiry of a prospective employer. Presumption of good faith is established but may be rebutted by showing that the information was "knowingly false" or in violation of a civil right of the employee. A Defamation tort may be considered in "bad faith" case.
Civil rights violation 775 ILCS 5/2-102
An employer may not discriminate in hiring, training, promotion, discharge, etc. against any person based on status in a protected class.
Arrest record 775 ILCS 5/2-103
An employer may not use arrest records or expunged criminal record information as basis of any employment decision. An employer may use other criminal record information legitimately obtained through the state police "in evaluating the qualifications and character" of an employee or prospective employee. The employer may also obtain and use "other information which indicates that a person actually engaged in the conduct for which he or she was arrested."
The Illinois Human Rights Commission has held that blanket discrimination against persons who have been convicted of a crime may result in illegal race discrimination. The IRHC has held that conviction of a crime should only bar employment where conviction has a direct relationship to the position sought.
An employer’s policy regarding consideration of conviction records may not be discriminatory in itself; the policy must be uniformly applied.
Exemptions to civil rights violations 775 ILCS 5/2-104
Employer may make decisions based on membership in certain classes under this statute. For example, preference for veterans is allowed and an employer may discriminate based on military discharge status. Discrimination based on age may be permitted for police and firefighters. Discrimination based on citizenship status is permitted if authorized by other state or federal law.
An employer may not discriminate because an employee has a "handicap" or disability, such as alcoholism or drug addiction. But an employee may be treated differently than other employees because that employee was on duty under the influence of a drug or alcohol. In this instance, the employer may discipline the employee for being at work while under the influence, regardless of the handicap. Employers may not discriminate where employee or applicant has:
- Been "rehabilitated" and no longer uses drugs;
- Is participating in a supervised drug program and is not using drugs; and
- Is erroneously perceived to have engaged in drug use, and was not under the influence.
Drug testing is authorized by this statute. An employer may take reasonable methods to ensure that a person who formerly used drugs is no longer using them. However, certain constitutional protections are available to public employees which are not available to private sector employees. See page 12-10 of the Employment Law IICLE. Certain protections also exist for employees who have collectively bargained for drug testing limitations. See page12-15 of the IICLE.
In Illinois, an employer may have an obligation to inquire into a potential employee’s criminal record or driving record and is liable for failure to do so. See page 12-15 of the Employment Law IICLE.
Questions you cannot ask job applicants
Questions you can ask job applicants
What Prescription drugs are you currently taking (before drug testing)?
|What medication are you taking that would cause positive result to test (only after a positive drug test result)?|
|What is the extent of your prior use of drugs?||Do you use illegal drugs?|
|How often have you ever used illegal drugs?||Have you used illegal drugs in the last two years?|
|Have you ever been addicted to drugs?||Have you ever been arrested or convicted of illegal drug use?|
|Have you ever been treated for drug use?|
Have you ever been treated for mental health problems?
|How well can you handle stress?|
|Are you currently seeking medical services?||Do you ever get ill from stress?|
Have you sought treatment for your ability to handle stress?
|Have you ever been unable to cope with work-related stress?|
|Does stress affect your ability to be effective?|
How frequently do you drink?
|Have you ever been arrested for driving while intoxicated?|
|Do you drink alone?|
|How much alcohol do you drink each week?|
|Have you ever been treated for alcohol problems?|
|Are you an alcoholic?|
|Does alcohol interfere with your life and/or activities?|
|Have you ever been arrested?|
Have you ever been convicted?